Citation Nr: 1811629
Decision Date: 02/22/18 Archive Date: 03/06/18
DOCKET NO. 05-18 790 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder, to include groin rash and fungal infection of the feet.
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a pancreatic disorder, to include pancreatitis.
3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity.
4. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity.
5. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling from August 13, 2002, and 70 percent disabling from March 16, 2005.
6. Entitlement to an increased rating for degenerative disc disease (DDD)
of the lumbar spine, currently evaluated as 10 percent disabling from August 13,
2002, and as 40 percent disabling from October 1, 2015.
7. Entitlement to effective date earlier than October 1, 2015, for the award of service connection for radiculopathy of the left lower extremity.
8. Entitlement to effective date earlier than October 1, 2015, for the award of service connection for radiculopathy of the right lower extremity.
9. Entitlement to effective date earlier than November 6, 2009 for the award of a total disability rating based on individual employability (TDIU) due to service connected disabilities.
REPRESENTATION
Veteran represented by: National Association of County Veterans Service Officers
ATTORNEY FOR THE BOARD
K. Kovarovic, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1977 to April 1978, November 1990 to October 1991, and July to December 1992.
These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2002, August 2005, June 2010, and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
In November 2007, the Board subsequently denied the appeals with respect to the skin and pancreas claims. In January 2009, the Veterans Claims Court granted a Joint Motion for Remand and remanded the matters for additional development. These claims were the subject of additional Board remands in February 2010 and May 2017. The May 2017 decision also remanded the PTSD, low back, and TDIU claims.
As a procedural matter, in a November 2017 statement, the Veteran raised three issues that have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ): (i) whether new and material evidence has been received to reopen a claim of service connection for a cardiovascular disorder; (ii) whether new and material evidence has been received to reopen a claim of service connection for a disability causing spots on the brain; and (iii) entitlement to service connection for Gulf War syndrome.
The Veteran indicated that he was awaiting a statement of the case (SOC) on these issues. However, it does not appear that he appealed the July 2005 rating decision on these issues. Therefore, the Board does not have jurisdiction over them. Further, he did not submit an explicit claim for Gulf War syndrome until November 2017. As that claim is awaiting adjudication by the AOJ, the Board does not have jurisdiction over it, and it is referred for appropriate action.
The radiculopathy and low back claims are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. A March 1995 rating decision denied service connection for skin and pancreatic disorders; the Veteran did not appeal this decision in a timely manner and no new and material evidence was submitted within one year of this decision. Therefore, the decision became final.
2. Evidence received since the March 1995 rating decision is cumulative and redundant of the evidence previously of record, such that it does not relate to an unestablished fact necessary to substantiate the skin or pancreatic claims, or raise a reasonable possibility of substantiating the claims.
3. For the period of August 13, 2002, to March 15, 2005, PTSD was productive of moderate occupational and social impairment as due to impaired judgment, disturbances of motivation and mood, and difficulty in establishing effective relationships.
4. For the period of March 16, 2005, to November 18, 2009, PTSD was productive of occupational and social impairment with deficiencies in most areas, including family relations, thinking, and mood.
5. For the period of November 19, 2009, to the present, PTSD was productive of total occupational and social impairment due to such symptoms as persistent hallucinations, persistent danger of hurting himself and others, and the inability to perform the activities of daily living without assistance.
6. The claim giving rise to the grant of service connection for radiculopathy of the left and right lower extremities was received in August 2002; entitlement to service connection did not arise until October 1, 2015.
7. The Veteran was first entitled to a TDIU effective November 6, 2009; an informal claim for entitlement was submitted in December 2009.
CONCLUSIONS OF LAW
1. The March 1995 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a skin disorder, to include groin rash and fungal infection of the feet. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a pancreatic disorder, to include pancreatitis. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
4. For the period of August 13, 2002, to March 15, 2005, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).
5. For the period of March 16, 2005, to November 18, 2009, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017).
6. For the period of November 19, 2009, to the present, the criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017).
7. The criteria for an effective date earlier than October 1, 2015, for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.400 (2017).
8. The criteria for an effective date earlier than October 1, 2015, for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017).
9. The criteria for an effective date earlier than November 6, 2009 for the grant of a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence to Reopen Previously Denied Claims
The Veteran is currently seeking to reopen his claims for entitlement to service connection for skin and pancreatic disorders. Historically, the claims were denied in a March 1995 rating decision. This rating decision was not appealed and he did not submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the March 1995 rating decision became final.
The Board must now determine whether new and material evidence has been received since the March 1995 decision to reopen the claims. In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a)
New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether a veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record.
In this case, significant evidence has been added to the claims file since the final March 1995 rating decision, including assorted service treatment records (STRS), April 2005 VA examinations, July 2017 hearing testimony, and VA, private, and Social Security Administration (SSA) records spanning the period on appeal. This evidence qualifies as new as it was not of record at the time of the final March 1995 rating decision.
However, the newly submitted evidence is not material as it does not raise a reasonable possibility of substantiating the claims. In this regard, the evidence did not show skin or pancreatic disorders at the time of the March 1995 rating decision. Similarly, the new evidence of record fails to establish such diagnoses related to the skin or pancreas. Instead, the Veteran has typically presented with normal skin evaluations during the rating period on appeal. Moreover, although the new evidence contains one isolated reference to an abnormal pancreatic CT scan, it does not appear that he received a diagnosis related to the pancreas or any follow-up treatment. Therefore, although he has submitted a significant body of evidence since the final March 1995 rating decision, none raises a reasonable possibility of substantiating the claims.
Thus, while new records have been submitted they do not raise a reasonable possibility of substantiating the claims and the applications to reopen are denied.
Increased Rating for PTSD
The Veteran is seeking entitlement to increased ratings for his PTSD, which is currently evaluated as 50 percent disabling from August 13, 2002, and 70 percent disabling from March 16, 2005.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a).
Here, the Veteran's disability has been rated in accordance with DC 9411. For higher evaluations to be warranted, the evidence must establish the following:
Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); and inability to establish and maintain effective relationships (70 percent).
Total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name (100 percent).
The Board will address each rating period in turn.
August 13, 2002, to March 15, 2005
In a July 2003 VA psychiatric examination, the Veteran reported impaired concentration and memory, depression and anger, and social isolation. Occasional suicidal ideations were also reported, but absent plan, intent, impulse, or desire. The examiner described the Veteran as adequately dressed and groomed, with fluent speech with no articulation difficulties, with anxious mood and a consistent affect, and oriented to person, time, place, and situation. As such, the examiner concluded that the Veteran did not present with gross impairments in cognition, memory, or judgment. No close friendships or hobbies were reported, although the Veteran attended the examination with his wife.
A social survey was conducted the following month, during which the Veteran reported a preference for working alone due to his temper. As a result, he experienced feelings of isolation and detachment from others. He further reported such symptoms as sleep impairment, irritability, difficulty concentrating, memory impairment, and exaggerated startle responses. A GAF score of 55 was assigned.
In a May 2004 examination, the Veteran was awake, alert, and oriented, with rapid speech, intermittent difficulties with dates and information, and to communicate effectively, and absent dysphoric mood. He reported the ability to manage the activities of daily living well, and did not indicate delusions, hallucinations, obsessive thoughts, or panic attacks. Primary symptoms of anxiety and depression were noted. Although cognitive impairment was reported by the Veteran and his spouse, no such impairment was observed during examination. Instead, he reported a positive reputation at work. This disability picture was reiterated by a VA examiner in July 2004, who established primary symptoms of headaches, memory loss, anxiety, and depression. Persistent delusions or hallucinations were not reported.
VA, private, and SSA records have also been submitted which span the entire rating period on appeal. During this time, the Veteran primarily presented as anxious, depressed, oriented, and with memory loss and cognitive deficits. Marital problems were also apparent, due in part to his mood swings and isolation. Statements submitted by his family in November 2004 further indicate his hyperarousal, sleep disturbances, and anxiety, and related strains on his marriage.
In considering the frequency, severity, and duration of the Veteran's symptoms, a rating in excess of 50 percent is not warranted for the period of August 13, 2002, to March 15, 2005. During this time, the disability was productive of moderate occupational and social impairment as due to impaired judgment, disturbances of motivation and mood, and difficulty in establishing effective relationships, particularly with his spouse. However, he remained relatively high-functioning during this time, such that he maintained steady employment and typically presented at examination as oriented and alert. He was further capable of communicating effectively with others and demonstrated appropriate self-care at all times.
Moreover, the symptoms justifying an increased rating are largely absent from the record. The Veteran's suicidal ideations were sporadic in nature and unaccompanied by plan, intent, or desire. Obsessional rituals and hallucinations were consistently denied, and the Veteran's cognitive impairment is not solely attributable to his PTSD. Instead, a GAF score indicative of moderate symptoms was assigned. Thus, the medical evidence of record is most consistent with a 50 percent rating for the period of August 13, 2002, to March 15, 2005. Accordingly, the appeal is denied to this extent.
March 16, 2005, to the Present
In an April 2005 examination, the Veteran reported symptoms including memory impairment, sleep impairment, anxiety, exaggerated startle responses, hallucinations, social isolation, suicidal ideations, and anger outbursts. He described "severe" marital problems, such that the parties were in marriage counseling. No additional relationships were reported with friends or family. Hobbies were also denied, although he maintained employment. During examination, he presented with difficulty finding words, as frustrated and depressed, and as oriented. A GAF score of 48 was assigned and he was classified as demonstrating marked social and industrial impairments. This disability picture was endorsed by a VA examiner in June 2005.
In an October 2009 lay statement, the Veteran's wife documented his ongoing symptoms, including memory impairment, cognitive impairment, and mood swings resulting in anger and violence. As a result, she functioned as the Veteran's primary caregiver, despite ongoing marital tensions.
Two private evaluations were conducted in November 2009. At that time, the Veteran symptoms included social isolation, loss of interest, impairment of memory and concentration, sleep disturbances, anger and depression, and hallucinations. One physician concluded that most of the details of daily living were left to the Veteran's spouse and that he was unable to work and "should not due to being a danger to himself and others." Additional effects such as severe marital problems and impaired impulse control were also observed. A corresponding GAF score of 25 was assigned.
The Veteran most recently underwent VA examination in October 2015, during which the examiner concluded that he presented with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Symptoms included depression, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment and abstract thinking, mood disturbances, difficulty with professional and social relationships, difficulty adapting to stressful circumstances or with impulse control, and the intermittent inability to perform the activities of daily living. Persistent delusions or hallucinations were denied. The Veteran further reported a strained relationship with his spouse and few other social supports.
Again, the Veteran has submitted significant VA, private, and SSA records spanning the period on appeal. These records reflect that he was ultimately awarded SSA benefits as due to a primary diagnosis of affective/mood disorders. On-going symptoms included mood disturbances such as anxiety, depression, hyperarousal, intrusive thoughts, and anger, which he treated with various medications and participation in counseling programs. Hallucinations or delusions were commonly denied, and cognitive insight was generally intact. GAF scores ranging from 42 to 60 were assigned during this time. This disability picture was further endorsed by the Veteran and his spouse during the July 2017 DRO hearing.
Upon review of the above, the Board finds that staged ratings are appropriate for the period of March 16, 2005, to the present.
First, a rating in excess of 70 percent is not warranted for the period of March 16, 2005, to November 18, 2009. During this time, the Veteran presented with occupational and social impairment due to deficiencies in most areas, including family relations, thinking, and mood. As a result, he experienced on-going mood disturbances including anxiety and depression that resulted in problems with anger management and marital relations. Memory and cognitive impairment was also observed, and those symptoms required treatment with medication and counseling. However, he was still relatively capable of functioning during this time with his wife's assistance, such that he reported ongoing employment during the April 2005 VA examination. Therefore, the appeal is denied to this extent.
However, a private evaluation dated November 19, 2009, denotes a significant worsening of the Veteran's disability. At that time, he presented with obsessive and intrusive thoughts, inattentiveness and memory impairment, and with difficulty in interacting with the physician as due to such symptoms as paranoia and isolation. These symptoms persist throughout the remainder of the rating period on appeal, such that multiple examiners have spoken to the Veteran's violent and impulsive decision-making indicative of a persistent danger to himself and to others.
For example, the November 2009 physician reported one incident when the Veteran "suddenly accelerated the truck he was driving in a fit of anger while his boss was in the back of [the] truck and fell to [the] side and [the Veteran] dragged him down the street resulting in some major injury." Moreover, his memory and cognitive impairment was of such severity that he was rendered incapable of managing his own affairs, and thus relied on his spouse for the activities of daily living. This disability picture supports total occupational and social impairment, such that a 100 percent rating is warranted for the period of November 19, 2009, to the present. Therefore, the appeal is granted to this extent.
Earlier Effective Dates
Radiculopathy of the Left and Right Lower Extremities
The Veteran is seeking entitlement to an effective date earlier than October 1, 2015, for the awards of service connection for radiculopathy of the left and right lower extremities.
The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran's separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
Here, review of the record does not indicate that the Veteran filed an explicit claim for service connection for radiculopathy of the lower extremities at any time. Instead, service connection was awarded in a November 2015 rating decision following the results of a VA back examination from the prior month. This examination was administered in the adjudication of the Veteran's back claim. Thus, the history of the back claim is dispositive in this case.
In this regard, the Veteran first filed a claim for entitlement to service connection for joint pain in June 1994. This claim was denied in rating decisions dated January and March 1995. These decisions were not appealed, and the Veteran did not submit documentation constituting new and material evidence within the one-year appeal period.
Instead, the Veteran filed to reopen the claim in August 2002, and further submitted a new back claim at that time. A November 2002 rating decision denied both claims on the basis that new and material evidence had not been submitted. Ultimately, a 10 percent initial rating for degenerative disc disease of the lumbar spine was awarded in a June 2010 rating decision, effective October 28, 2002. However, a January 2013 later changed the effective date to August 13, 2002, as based upon the date that the Veteran requested to reopen the claim. Accordingly, the RO has construed August 13, 2002, as the date of claim, and the Board finds no cause to disturb such a finding at this time.
By comparison, the Veteran was not diagnosed with radiculopathy of the left and right lower extremities until the October 2015 VA examination. Accompanying treatment records are entirely silent for reports of this disability or treatment prior to that date. The date of the examination - October 2015 - thus establishes the date that entitlement arose.
Accordingly, an effective date prior to October 1, 2015, for the awards of service connection for radiculopathy of the left and right lower extremities is not warranted. The current effective date corresponds to the date that entitlement arose and is later than the date of the August 2002 claim. As such, October 1, 2015, constitutes the earliest possible assignable effective date in this case. Therefore, the appeal is denied.
TDIU
The Veteran claims entitlement to an effective date earlier than November 6, 2009 for the award of a TDIU.
In claims for increased disability compensation, including a claim for a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
In this case, the Board previously construed a December 2009 statement as an informal claim for a TDIU, made in conjunction with a PTSD increased rating claim. In a subsequent November 2015 rating decision, entitlement to a TDIU was granted effective November 6, 2009. Further, the RO found that his service-connected disabilities precluded substantial and gainful employment effective that date, as based upon an employer statement delineating his last date of employment as November 5, 2009.
Thus, the Veteran was entitled to a TDIU effective November 5, 2009, and the related claim was filed in December 2009. He is precluded from entitlement prior to the November 2009 date, as full-time employment is noted in the record. Accordingly, he is in receipt of the earliest effective date under the laws and regulations. Therefore, the appeal is denied.
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
ORDER
New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a skin disorder, to include groin rash and fungal infection of the feet, is denied.
New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a pancreatic disorder, to include pancreatitis, is denied.
For the period of August 13, 2002, to March 15, 2005, a rating in excess of 50 percent for PTSD is denied.
For the period of March 16, 2005, to November 18, 2009, a rating in excess of 70 percent for PTSD is denied.
For the period of November 19, 2009, to the present, a 100 percent rating for PTSD is granted, subject to the regulations governing the award of monetary benefits.
An effective date earlier than October 1, 2015, for the grant of service connection for radiculopathy of the left lower extremity is denied.
An effective date earlier than October 1, 2015, for the grant of service connection for radiculopathy of the right lower extremity is denied.
An effective date prior to November 6, 2009 for a TDIU is denied.
REMAND
Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's remaining claims.
In this regard, the Veteran's low back disability was most recently assessed during October 2015 VA examination. Since that time, the law has changed to require joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). As the October 2015 examination does not fully comport with these requirements, a new examination must be undertaken.
Additionally, the Veteran was granted service connection for left and right lower extremity radiculopathy following the October 2015 examination. However, a new examination is needed at this time, as the October 2015 examination did not address the applicable diagnostic criteria and the Veteran has asserted that his disabilities are worse since that time.
Accordingly, the case is REMANDED for the following actions:
1. Obtain any outstanding VA clinical records that have not been associated with the claims file.
2. Schedule the Veteran for an examination to assess the current severity of his service-connected low back disability.
The claims folder must be provided to the examiner in conjunction with the examination, and the examiner must indicate on the examination report that such review was undertaken. All pertinent symptomatology and findings must be reported in detail.
All ranges of motion involving the Veteran's disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.
In order to comply with the current law, the examiner is asked to test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
Furthermore, an opinion must be given as to whether any pain associated with the Veteran's lumbar spine disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups.
The examiner should also report the total duration of incapacitating episodes during the past 12 months as due to the disability.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
3. Schedule the Veteran for an examination to assess the current severity of his service-connected right and left lower extremities radiculopathy.
The claims folder must be provided to the examiner in conjunction with the examination, and the examiner must indicate on the examination report that such review was undertaken. All pertinent symptomatology and findings must be reported in detail.
The examiner is asked to indicate whether the Veteran's disabilities result in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe, with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate.
4. Thereafter, readjudicate the remaining claims on appeal. If the benefits sought remain denied, issue a supplemental SOC to the Veteran and his representative and provide an appropriate period for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs